Alternative Dispute Resolution

Mediation a form of alternative dispute resolution, or ADR, that is often employed to avoid bring a legal dispute into the courts. Mediation revolves around a third party being brought in to structure meetings and help both parties involve reach a decision based on the facts provided during the hearing. Mediation is often confused or concurrently referred in the same vein as arbitration.

Legal matters

Diplomatic disagreements

Workplace disputes

Community and Family matters

Both parties involved in a mediation procedure are to consider the mediator or third party to be completely impartial. The mediator essentially exists to provide for a more direct and controlled manner in which both parties can communicate between each other, while providing for the facts of their own case. The ultimate goal of a mediator is simply to help both parties reach an agreement that will satisfy them both, while concurrently helping them keep the dispute from reaching litigation procedures in court.

Because mediation does not require the involvement of attorneys or the court system, it will often be the first avenue considered in settling a dispute between two parties. A mediator helps facilitate the introduction of a settlement or compromise that both parties themselves actually create. If no such resolution can be reached, further action, such as bringing the matter to court, may be necessary. Advantages of using mediation over other types of ADR may be:

The mediation process is implemented to resolve a dispute in a timely fashion. Depending on the nature of a dispute, if introduced in the courts, reaching a judge’s decision can often take months or even years. A mediation can often resolve a disagreement in a matter of hours.

Mediation costs are tremendously less than those incurred by a court trial. Even though the mediator or third party may charge a fee similar to that of an attorney’s, the mediation process does not last nearly as long as court procedures. In resolving a dispute in less time will translate in having to spend less money to cover hourly attorney costs, and other expenditures as a result of a court-rendered judgment.

The parties involved in a mediation procedure are responsible for essentially rendering a decision of judgment for the dispute. Because the mediator simply acts as a facilitator, the parties themselves can reach a compromise that will prove beneficial to both parties to some extent.

Unlike a court decision, which the judgment will most likely only favor one party, the agreements reached in mediation will tend to be mutually agreeable. Furthermore, even though the agreements in mediation procedures are not legally binding, they can always be brought to a court of law.

Conflict management is a set of strategies used to mitigate or prevent issues in a workplace or any organization. Conflict arises when an party is made to be dissatisfied with the conduct, attitude or needs of another party. While there are several means to achieve redress, conflict management strategies aim not to resolve these disputes amicably, but to reduce the amount of conflict and the damaging collateral affects of conflict on the rest of the organization or workplace. This differs from conflict resolution, which aims to end the conflict and suggest a solution to prevent the conflict from arising again.

What is the contemporary way to engage in conflict management?

Modern conflict management schemes have five styles of handling conflict. Professor Afzalur Rahim of Western Kentucky University indentified the styles as follows:

Integrating – this process is used when there is a complex problem that requires both parties to work together and there is time to find common ground for problem solving

Obliging – this a process used when one party has a noticeably weaker position and needs to cultivate advantage for a later issue. The weaker party must make concessions to the stronger party, especially with the issue is not important to the weaker party. This approach is necessary to preserve the relationship, although the weaker party must be responsible and oppose actions that are wrong or unethical.

Dominating – this process is used to avoid drawn out processes over trivial issues with poorly trained subordinates. A dominating approach may be necessary in situations that the issue is trivial but needs to be acted on swiftly and there is a strong risk that the wrong decision will be made. This is not a style to used when subordinates are competent, there is ample time to discuss a solution or both parties are equally powerful.

Avoiding – this style put off trivial issues to avoid conflict. In this case, confronting the opposing party would be unproductive and more time is needed in order to resolve the conflict amicably. This style is not to be used if the issue requires immediate attention or one party has a responsibility to make a decision

Compromising – This style is used when integrating and dominating does not work , the parties have equal power and a solution however temporary is necessary to move forward. This is not an option for complex issues but rather issues where goals are mutually exclusive.

Rahim also makes a distinction between “affective” or emotional conflict and “substantive” conflict, which keeps a working environment or organization effective. A third party or an alternative dispute resolution may be necessary to resolve situations where the conflict has left the two parties unable to come to a resolution due to either entrenchment in positions or a breakdown in communication.

An effective leader can anticipate conflict, accommodate the concerns of subordinates, but also make difficult decisions that would have otherwise led to drawn out conflict.

Conciliation is an ADR (alternative dispute resolution) that utilizes a third party, who meets with the sides separately and communicates the needs of the other side. The purpose of conciliation is to improve communication between two parties so they can effectively articulate their disagreements to the other party. In improving communications through the efforts of a third party conciliator, some tension from the dispute may dissipate, allowing the parties to come to a resolution amicably. The key element in conciliation is the conciliator was is a skilled negotiator and takes an active role in negotiating a settlement.

What are the qualities of a conciliator?

Unlike mediation, the goal of conciliation is not to reach a settlement that pleases and accommodates both parties, but rather convinces the disputed parties to make concessions in the name of resolving the dispute. Therefore, the conciliator, serving as the primary means of communication, must identify the objective of each side and act as their advocate to the other side. Once they have reached an objective perspective and a working knowledge of the dispute, they can begin the process of seeking concessions to resolve the dispute. The conciliator first resolves the finer points of the dispute before moving on to larger issues that will require significant compromise. By eliminating the smaller sources of conflict, the conciliator has brought the two sides closer to an agreement, which increases the incentive of the parties to compromise. Mediators cannot enforce a settlement, that parties must be persuaded to accepted the agreement and abide by it.

What are some conciliation specialists?

The federal government maintains a dedicated conciliation service called the Federal Mediation and Conciliation Service (FMCS). This agencies help to mediate disputes that arise in federal, state and local government agencies as well as labor cases that involve interstate commerce, as per the federal government’s jurisdiction. The FMCS’s role in the 2011 NFL labor negotiation is an example to the type of mediation and conciliation service they offer to organizations. This service is free in contract disputes between employers and unionized employees. By law, the employer must notify the FMCS 60 days before the expiration of the contact so that the collective bargaining process may begin. The process will involve local representatives of the FMCS who are knowledgeable in the ADR process and will work with both sides until the dispute is resolved. The FMCS also offers grievance mediation to prevent the two sides from entering arbitration or ultimately, litigation.

Why is conciliation preferable to litigation?

Litigation is costly, public and lengthy. Members of the dispute are rarely satisfied by the outcome of the jury-awarded settlement and there is little hope for the sides to work together again in the future. Most ADR processes can preserve a relationship and manage grievances through increased communication. Conciliation is a useful process in that a skilled professional handles the negotiations and can offer an objective analysis of each side’s demands while attempting to coax concessions.

Unlike conflict management, which seeks to deal with conflicts as they arise, conflict resolution attempts to identify the root of the conflict and resolve it so it does not arise again in the future.

According to the Thomas Kilman Instrument, there are five ways of addressing conflict:

Accommodation – complete abandonment of one’s needs to attend to the needs of the other party. In this situation, the needs of the other party supersede your needs and the conflict is easily resolved by appeasing the other party.

Avoidance – to ignore or recoil from the conflict, opting instead to focus on other matters or staying away from the source of the conflict. This is a means to stall in hopes that the conflict will resolve itself or that it can be resolved later.

Collaboration – if there is ample time available, two parties may be able to resolve a conflict by focusing on shared goals with some leadership. These parties must have similar goals for the collaboration to be successful. Through this partnership, they can achieve a solution that satisfies both parties as they have achieved their shared goals.

Compromise – this method has a third person mediate communication between two parties with grievances. Both parties will give up some demands in the name of an agreement. Compromises tend to achieve a low sense of satisfaction as neither party gets all of their demands.

Competition – this method is when the relationship between the parties is inconsequential. The dominant party determines that their needs outweighs the small party and as a result resolves the conflict by enforcing their desires.

What are keys to successful conflict resolution?

For most of the previous mentioned five methods of resolving conflict, it is important to be flexible and cooperative, so that points of view can be effectively communicated and an agreement can be reached that will prevent the same conflict from erupting again in the near future. For competition, assertiveness is the primary goal as the party must identify and reinforce its goal clearly so that the other side may accommodate or agree to collaborate. A party should only assert itself in conflict resolution when there is a moral wrong or they have a clear advantage and pressing that advantage will resolve the conflict amicably.

A conflict resolution where one side is too dominant or assertive or does not provide an environment conducive to communication and compromise risks causing undue pressure on the other side so that an imperfect resolution may occur, if any at all. Even in a competition scenario, the needs of the other side must be addressed for there to be any sort of actual resolution. Remember that unlike conflict management, which seeks to end conflicts as they arise, the goal of conflict resolution is to prevent these disputes from becoming a reoccurring problem for the organization or parties.

Alternative Dispute Resolution is quickly progressing toward becoming the preferred avenue to take when it comes to civil paralegal. The drafting of motions for referral of a case for an alternative dispute resolution proceeding.

The drafting of demands for arbitration.

Researching of the rules of regulations for the various kinds of alternative dispute resolutions.

Assisting with the drafting of the agreements or settlements between two parties that result out of alternative dispute resolutions, including as well any binding agreements that are contingent to both parties.

Conduct background research of the third party involved in the procedure, such as mediators, arbitrators, or judges.

Arrange for the proper facilities or venues which are appropriate for alternative dispute resolution proceedings.

Draft documents involving the specifics of a settlement agreement, such as property transfer documents or lien releases.

Assist with the preparation of questions that are to be applied to the jury during a summary jury trial proceeding.

Any legal research that is pertinent to the case to draft contract clauses as deemed necessary by the alternative dispute resolution.

The appropriate handling of documents in accordance to settlement agreements.

Those seeking to specialize in ADR, must also be aware of traditional litigation procedures. Furthermore, an acute knowledge and understanding of the eight methods of ADR, and their various applications and limits. Also, how ADR applications can vary due to nature of various disputes, such as its utilization in industrial, commercial, or civil settings.

Alternative Dispute Resolutions methods are employed to keep disputes and disagreements between two parties to evaluate whether the matter can be resolved or negotiated outside of the court room. Therefore, any kind of legal dispute that can be litigated can be subject to alternative dispute resolutions.

This may include, but is not limited to, labor relations, insurance matters, business disagreements, family problems, employment, public policy, commercial and industrial trade, and technology matters. However, it is important to be knowledgeable of the ADR techniques and how each functions for certain methods may prove to have better applications in certain fields than others.

An alternative dispute resolution allows for opposing parties in a particular disagreement to reach an agreement without having to endure litigation or court proceedings. Arbitration is one of the forms of alternative dispute resolution that may often be employed to resolve a matter outside of the courts. Arbitration is a method that introduces a third party that hears each party's case, and arrives at a decision which is legally binding to both sides.

Arbitration will commonly be employed for commercial disputes, particularly international commercial transactions, where court litigation and procedures will prove to be too time consuming and incur monetary losses for both parties. Arbitration is to be conducted by an arbitrator or AN arbitral tribunal, and the nature of an arbitration can be voluntary or mandatory by law.

Furthermore, there instances in which parties may decide to enter the alternative dispute resolution on non-binding terms. In other words, the decision and imposition derived by the arbitrating committee may not necessarily be adhered to by either parties, and such deviation is not considered to be punishable by law. However, binding decisions issued by an arbitrator are otherwise considered not be subject to an appeal; the decisions rendered are final.

Arbitration has certain advantages and disadvantages, which may affect the decision of a certain party to enter such a method of alternative dispute resolution. Depending on the nature of the dispute, other forms of alternative dispute resolution may be employed. However, some advantages offered by arbitration include:

The nature of the dispute involves highly technical subjects, in which case an arbitrator may be appointed that is an expert or has intensive knowledge or experience in that particular area. Having a qualified arbitrator will prove beneficial in properly resolving the dispute.

Arbitration is generally employed because of its ability to render decisions quicker than those that are taken to the courts.

Arbitration offers the potential of curtailing expensive fees and costs that often occur in court litigation.

Arbitration procedures often occur away from the public eye, thus making the proceedings and subsequent decisions or awards confidential.

Awards granted through an arbitration procedure are generally much easier to enforce on an international level then a judgment rendered by a court.

Even though arbitration has proven and distinct advantages, depending on the nature or context of the disagreement, other alternative dispute resolution options may prove to be more advantageous. Some of the disadvantages of arbitration are:

Depending on the nature of the dispute, arbitration procedures can prove to be highly complex.

The arbitration process may prove to be one sided if a particular party is backed by power law firms or corporations, which give a party a powerful advantage in the proceedings.

The parties may be subjected to cover the costs of the arbitrators, which can limit a party's option to enter such an arbitration.

Though also an advantage, limited room for appeals can prove to be an obvious disadvantage to the losing party in the arbitration process. A judgment or ruling is legally binding, even if such is rendered in error.

In the case that multiple arbitration members are needed for an extremely complex case, it may lead to a longer procedure or delays in the decision making of the arbitral committee.

Discovery in arbitration can prove to be very limited or non-existent.

If in the exceptional case than an appeal can be sought for arbitration judgment, the costs incurred by bringing the appeal to the courts can prove to be extreme and more time consuming, thus making the arbitration process